You’ve probably heard the phrase “You can’t have your cake and eat it too.” But if you’ve ever puzzled over its meaning, here’s a hint: If you eat your cake now, you won’t have any left over to look forward to eating later. In other words, sometimes a person is forced to make a choice between two good options. In the real estate world, dual agency breaks the cake rule: If your real estate agent also represents the sellers of the home you want to buy, you don’t necessarily need to ditch them. In many cases, you can keep your agent and get the house too — if you want to, that is.
Whether you’re buying a home in Providence, RI, or Tampa, FL, it’s typical for one agent to represent the seller and another agent to represent the buyer. With dual agency, one agent works for both the buyer and seller — and keeps the full commission. Dual agency also occurs when agents from the same brokerage represent each party. But like enjoying a huge slice of cake and in return getting a bellyache, there are definitely pros and cons to agreeing to dual agency.
Because one real estate agent or brokerage represents the buyer and the seller, the agent doesn’t need to wait every time communication needs to happen between the parties. Streamlined communication often creates a smoother transaction. “You are in charge of both sides, including paperwork, scheduling, and deadlines,” says Mindy Jensen, a Colorado agent and community manager of BiggerPockets.com. “We’ve all been involved in a sale with an agent who didn’t respond in a timely manner, missed deadlines, and in general did not perform their duties as they should have. For us control freaks, dual agency can seem like a great thing.”
Because a dual agent is working in a potential conflict-of-interest situation — one client (the seller) wants to get as high a price as possible, while the other client (the buyer) wants to pay as little as possible — the agent can’t take sides or give advice. Bruce Ailion, an Atlanta, GA, real estate agent and attorney, compares dual agency to having one attorney representing both husband and wife in a divorce. “The parties’ interests are adverse and are best represented by independent professionals,” he says.
The agent in a dual agency situation becomes, instead of a coach, more of a referee. “The agent cannot disclose confidential information to either party and has to act in a neutral position during the transaction,” says Emily Matles, a New York, NY, agent with Douglas Elliman. Matthew Berger, another New York, NY, agent with Douglas Elliman, says: “When the listing agent steps into the role of dual agent, they cannot give advice to the seller nor the buyer.” On the other hand, when you have an independent agent, “You are more likely to get the benefits of being a principal getting fiduciary benefits,” Ailion says.
Whether you’re a seller or a buyer, there’s nothing to fear about dual agency: If you don’t consent to the practice, it won’t happen. “The dual-agent broker must ensure that both parties know of the arrangement and consent to it,” says David Reiss, professor of law at Brooklyn Law School. His advice: “Home sellers should review the terms of the listing agreement before they sign it to see if dual agency is being contemplated.”
Here’s another phrase you’ve probably heard: “Two heads are better than one.” There’s a chance that as the only agent involved in the transaction, they might miss something. “It’s nice to have checks and balances,” Jensen says. “When you are running both sides of the show, there is no one else. If something gets missed, it is 100% on you.” The system of checks and balances also helps prevent one side from becoming too powerful, a situation that can happen if one agent represents both sides. “If you have an unethical agent, there’s a lot they can do that can affect the transaction,” says Tania Matthews, a central Florida agent. “For example, they can choose to not show the house while they wait to represent the buyer and take both sides.”
Remember that “dual agency” refers not only to the same agent representing both sides but also to the same brokerage representing both the seller and buyer. In that case, there would quite likely be two agents — agents who probably don’t even know each other. Here’s an example from Thomas Miller, a Washington, DC, agent with Keller Williams Capital Properties: “Since Keller Williams Capital Properties has several hundred agents, having dual agency provides the seller access to a pool of potentially thousands of buyers. If the seller declines consent for dual agency, they are now unable to sell their home to any buyer that any other agent in my office works with. If the buyer declines dual agency, they could be missing out on the opportunity to buy their dream home simply because another agent in my office is the agent selling the property.”
“Dual agency is a hard topic to understand, and it’s easy to make a mistake,” Ailion says. You might not know whether the agent is truly balancing the interests of both parties, and this can create confusion. Dual agency is even banned in some states (ask your agent about the rules in your state). “In the law, conflicts of interest in representing opposing parties [are] very highly discouraged,” Ailion says. And how’s this for confusion: In Kansas City, where the metro is in two states, dual agency is legal in one of those states (Missouri) and illegal in the other (Kansas). “Imagine literally crossing a street and being able to practice what is strictly prohibited 20 steps over,” says Anthony West, a Kansas City agent who works in both states.
A home seller pays a commission to their agent, who then splits that commission with the buyer’s agent. If that agent is the same person, the commission fee might be less. “The broker may be willing to take a lower fee for representing both sides of the deal,” says Phil Lang, COO of TripleMint. And if the seller is saving money, they might pass some of that savings to the buyer.